Features - The Tasini Decision: A Victory for No One

Richard
Wiggins is an author and speaker specializing in Internet topics.Wiggins has written for IEEE Computer, Searcher, Library Journal, New
Media, Internet World, and other publications. He serves on the editorial
board of First Monday, a peer reviewed e-journal about the Internet.He is co-author of a forthcoming book on home networking
(O'Reilly). He has presented at numerous conferences nationally and
internationally. Wiggins currently serves as a senior information technologist in the Computer
Laboratory at Michigan State University. His web site is www.richardwiggins.com.

The National
Writers Union and its supporters enjoyed a brief period of euphoria after
the Supreme Court ruled in the case of New York Times Co. v. Tasini.Tasini et al hoped that through litigation they could win
retrospective payments for freelancers who had written for the Times and
various other publishers.But
the euphoria was fleeting: the Times, having learned that their use
of freelancers’ works in online databases such as LexisNexis violated the
copyright of the authors, ordered databases to remove the freelancers’
works from the archives.

We now know that
this Supreme Court decision (landmark or otherwise) hurts not only the
litigants but everyone:

·Past freelancers have not gained a single penny in compensation for their past
contributions.It is not clear
how long it will take for a settlement – or a judgment in new litigation
– to be reached.

·Nothing has been accomplished to assist any future
freelancers.The decision
provides relief for those freelancers who had not transferred or assigned
future republication rights. Thus the decision provides no benefit to any freelancer whose contract assigns future
republication or repurposing rights to the publisher – and in 1995 most
publishers changed the terms of their freelance contracts to provide for the
transfer of copyright for any digital repurposing.Even if a settlement or judgment is reached, the affected
class is relatively small – and it will never grow.

·Libraries and the public – and in particular scholars and students –
have lost access to complete archives of major newspapers,
magazines, and other publications that accept contributions from
freelancers.No longer can a
researcher be confident, for instance, that she has exhaustively searched
for a relevant article in the Nexis collection of major newspapers.

·Publishers such as the Times certainly didn’t win.Besides losing an important case argued by Lawrence Tribe in front of
the Supreme Court, the Times will at some point have to pay the
freelancers.We’ll discuss
the monetary aspects later.But the Times also has seen its status as the national
newspaper of record diminished; if there are holes in the digital archives
that most people rely on these days, the Times becomes something like
the 92% newspaper of record. Publishers who rely on third party
aggregators may even lose access to complete archives of their own past
issues.

The sad part of
the story is that this debacle was entirely foreseeable – and in fact was
explicitly predicted by the publishers and their attorneys. The Times had
stated publicly and in court that should Tasini et al prevail, the paper
would be forced to remove freelancers’ works from archives. After all,
once the Supreme Court ruled that the Times’
use of freelancers’ work infringed their copyright, any further such use
could be ruled a willful infringement, opening the Times to potential sanctions of thousands of dollars per
infringement.

In short, the
National Writers Union fought a quixotic battle and won a pyrrhic victory.

But Tasini is
not through litigating. Only July 6, the NWU sued again, this time to try to
force the Times into a monetary settlement with the freelancers.
Tasini and the NWU have struck a rather bizarre pose – claiming on the one
hand that publishers may owe freelancers billions (sic!) of dollars in
retrospective royalties, while claiming on the other hand that the
publishers need not have removed the works in question from archives for
fear of greater infringement penalties

The NWU
doesn’t seem to allow for the possibility that many freelancers may never
have expected future compensation after their articles’ first runs, and
that many freelancers may feel that the benefit of having their works in the
digital archives for posterity outweighs any potential for further
remuneration.I am such a
freelancer. Although I have not written for the Times,
throughout the 1990s I wrote a number of articles for new publications
such as Internet World and New Media. In fact, in the case of New Media, I helped persuade the editor and publisher that they
ought to start a Web site with open archives of past issues.I never dreamed of asking them to pay me again for the right to
repurpose my articles on the Web; they had compensated me well in the first
place.

Today, Internet
World is in a different format with a different editor, and New
Media has ceased print publication.Both have removed their archives of past issues.The result is I get e-mail from college professors who still want to
use my 1996 article on “How the Internet Works.”The publisher has done a disservice to this latent audience - the
community of readers who seek an article for historical reasons or because
it has some enduring relevance. Even though Internet
World doesn’t seem to care about archives of its own past issues, I
think the Internet is a much poorer place without the complete collection of
reportage covering its years of explosive growth.

The fact is that
neither publishers nor freelancers fully appreciated the value of digital
archives. The NWU portrays The New
York Times as ruthlessly exploiting the rights of freelancers for
further economic gain.In fact,
after an abortive attempt at building a business out of online archives in
the 1970s, the Times signed away
the electronic rights to its own content to Nexis.Only when LexisNexis changed ownership was the Times able to renegotiate.

Similarly, I’m
willing to bet that many freelancers who contributed to the Times
in, say, 1991, were thrilled to be published in the Times
to begin with, and never expected another nickel of compensation.The NWU railed against the Times
for advertising a mechanism on the Web for such authors to opt back into
electronic archives with no further compensation.It will be very interesting to see how many freelancers
accept the Times’ offer.

Other
freelancers may feel differently. To be sure, the NWU raises a valid issue
of fairness.If publishers
discover new ways to repackage and repurpose old works to make new profits,
it is only fair for freelancers to participate in those profits.Indeed, one can argue that staff authors, as a matter of
fairness, ought to participate as well.Under work-for-hire rules, they presumably do not. (I am not privy to
the employment contracts of Maureen Dowd, William Safire, John Markoff, or
Thomas Friedman, but I do not worry about their economic well-being.)

Ultimately the
question comes down to economic value.How much is a given freelancer’s work worth to the issue of the Times
in which it first appears, and how much is it worth for all future
potential users of the archives?Can
this value be fairly represented by a single payment for both initial and
all future uses, in effect giving the author the net future value of all
such potential uses in a lump sum?

Or is the
obvious answer to pay freelancers by the sip?In other words, every time a new reader pulls down a past article,
another nickel rings up on the author’s electronic tote board?One digital archive vendor, the Gale Group, explicitly states its
support for a system of metered compensation to authors:

Our hope is the
contributions of freelance writers and authors will not be deleted from the
information pools we aggregate into our online services. We would prefer to
see a settlement between publishers and freelancers that will enable
freelance work to remain accessible though our databases. To that end, we
have a tested system in place to track usage of our databases at the article
level, making it simple for publishers to track royalties generated on Gale
Group products for specific writers.

These issues of
who imparts what value to whom, and how to compensate contributors for the
value they provide, form the real core of the dispute between publishers and
the NWU.

Digital archives
change the equation.The
“back file” of a publication such as the Times
is aggregated with content from other publications by vendors such as
LexisNexis.The entire back
file is licensed to institutions such as research libraries, public
libraries, and large corporations.Those
licenses typically allow every patron, student, professor, or employee
unlimited access to all articles in the corpus.The institution pays the vendor a hefty flat annual fee.

For a newspaper
such as the Times, most freelance
articles are likely to impart relatively little value to the back file.After all, major stories and breaking news will be assigned to
reporters on staff most of the time. Freelance pieces may cover more obscure
news, slice-of-life stories, and the like. In
other publications, freelance contributions may be significantly more
important.Occasionally, a single article might take on timeless status
with new citations and new readers into the indefinite future.An example is Vannevar Bush’s seminal article “As We May
Think,” published by The Atlantic in
1945.

Sorting out how
to fairly compensate freelancers will not be easy. Historically, the book publishing industry pays royalties
based on sales, and newspapers and periodicals do not.Instead, an editor negotiates with an author based on the
publication’s circulation, its revenues, and a rough guess as to what
value the freelancer’s contribution brings to the publication. If an
article proves wildly popular beyond expectations, the author may be in a
better negotiating position for the next assignment, but generally does not
participate in the windfall. Gale’s
statement indicates that it is at least theoretically possible to offer
metered payments based on an article’s future popularity.

Thus, metered
compensation presents real financial challenges.With the exception of Northern
Light, most aggregators agree to contracts with libraries and
corporations that provide unmetered use to a defined audience on an annual
basis.This means that neither
Nexis nor the Times sees
additional revenue when each article is retrieved from the archive; there is
no marginal dime from which to pay the freelancer a nickel.(One can imagine a starving freelancer visiting the local research
library and ringing up royalty payments one nickel at a time.)

In negotiating
the complex question of value, the NWU would do well to stop overstating the
potential value of their contributions.The Times states that it
made only $16 million from aggregators in all of 2000, and that 8% of its
material is freelance.The
value of freelance work to the back file is probably even less than the 8%
share.Thus the whole pool of money to argue about is a fraction of
8% of $16 million for one year of the Times.
For some publications, such as The New Yorker or Vanity Fair, the freelance contributions may be significantly more important.

Any single
article in a digital archive is, in general and on average, of minimal
value. Some articles may hold a great deal of latent or potential value, but
this value is unknown until the flow of history and intellectual discussion
causes future searchers to retrieve and use the article. Even retrieval
itself is a poor index of value to the future researcher.An article might form the core of a future PhD dissertation, or it
may be retrieved by a writer merely trying to determine who first used the
word “digerati” (and whether the spelling ought to be “digirati”).

Any single
freelance contribution is also, on average, of minimal value. Paradoxically, even though freelance articles taken alone or collectively may contribute relatively little economic value,
their absence represents an incalculable loss to the archives.Let us call this the
Paradox of Archive Value. All freelance articles together are of small value
compared to the whole.Yet the
total archive is extremely valuable to researchers trying to exhaustively
study a particular subject.A
historian trying to write about Watergate is going to feel a lot less
confident if he is told that Nexis has 92% of the articles on the subject,
not 100%.

Sadly, some of the
official representatives of the library community seem to have lost sight of
this vital fact.The American
Library Association and the Association of Research Libraries filed an
amicus curiae brief in support of Tasini, and issued a press release lauding
the Supreme Court verdict.

(By contrast, the Special Libraries Association officially took a neutral stance, urging the parties to negotiate rather than litigate. In a February 2001 press statement, SLA warned that a court victory for publishers could have a chilling effect on future freelancers, and a victory for authors could "could set in motion several responses by the publishing community, including price increases to offset increased fees for use of freelance articles, or the removal of a substantial portion of archived articles.")

In a joint ALA/ARL
press release, Prudence Adler, Associate Executive Director of ARL said
"… the Court's ruling recognizes that certain archival media, such as
microfilm and microfiche, do not infringe freelance authors' copyrights.
Thus the historical record will continue to be available to researchers and
the public--a matter of utmost importance to librarians."

Adler’s
statement is astonishing in its ignorance and breathtaking in its lack of
realism.In the year 2001, for
an organization that represents research libraries to expect online
researchers who work from their offices or homes to revert to the
bricks-and-mortar library in order to feed fuzzy microfilm reels into aging
readers with dusty lenses – this is simply beyond belief.It is hard enough educating new scholars to rely on high-quality
full-text databases.To expect
them to search and browse among the 92% while coming to the library for
old-fashioned, slow access to 8% is naïve beyond belief. Only the most
dedicated scholars will do this. The future of research is the digital
library, whose goal is to democratize access and improve the quality of
everyone’s research.By
supporting Tasini before and after the verdict, ARL and ALA have helped rip
a hole in digital archives, and have set back the progress of digital
libraries immeasurably.

ARL is supposed
to represent the interests of leading research libraries, and ALA is
supposed to represent the library profession.The 123 member libraries of ARL and the 61,000 members of ALA should
demand an explanation as to why their executives have followed this path.If ARL and ALA really had cared about the plight of freelancers, they
should’ve suggested to their members for years that they ought to sign
contracts with aggregators only if freelance writers were fairly
compensated. Where were these organizations during the last two decades as
libraries licensed aggregated content? It cost ARL and ALA nothing to support Tasini late in the
litigation; it cost their members and their patrons an incalculable amount.

But the damage
has been done.Now, research
and other libraries should negotiate hard with the aggregators. Nexis
simply isn’t worth anywhere near as much if it isn’t complete.Barbara Quint, editor of Searcher,
has implored aggregators at a minimum to preserve the bibliographic and
abstract parts of their databases, so that at least the dedicated researcher
can find a path to the microform article.(An irony:I cannot find
all of the articles written by Jonathan Tasini online, in order to read his
arguments and appraise his writing.I
do not know what pieces may have been stricken.)

The courts, of
course, had to wrestle with the dispute that was before them – the facts
and the law – and not what is fair or what is practical.Indeed, the Supreme Court struggled to determine whether
online archives were a “revision” under the copyright law; the crux of
the case was whether the publishers, in creating archives, were merely
“revising” an existing work, in which case there would be no copyright
issue.This led to tortuous
discussion of whether the Times ships
its daily issues to Nexis as a single file or multiple files.Of course, the mechanics of how the archives are built are wholly
immaterial to what the archives are.Justice
Ginsburg’s opinion focused instead on the very different ways archives are
used by readers.I think anyone
who both reads a daily newspaper and who searches electronic archives
understands that Nexis is not merely a revision of the Times – or any of the other publications in the corpus.

So I will
concede that the NWU may well have had the better legal argument in the case
at hand, and that the Supreme Court decision may have been correct given the
particular facts and the law.But
the decision based on the particular facts and law at issue still leaves us
in a situation where everyone loses.The
problem is that no great labor movement was able to bootstrap itself
exclusively through litigation.The
union has to build a moral case with the public, and it has to build
solidarity in its ranks.Neither
of these will be easy with
freelance writers.No matter
how much freelancers claim poverty, the public will never see their plight
in the same light as, say, migrant workers or coal miners.

Nor will it ever
be easy to organize freelancer writers, who by definition are an amorphous,
mobile, and elusive lot.Despite
Tasini’s attempt to use this litigation for union building, it is unlikely
we will ever see raucous monthly local chapter meetings populated by large
numbers of freelance writers. Even if freelancers could be organized, is
hard to imagine how a strike of freelance writers would bring publishers to
the table.

And this is the flaw in Tasini's litigation strategy. In a 1997 message to NWU members, Tasini wrote bitterly of a "worldwide war between haves and have-nots." He declared, "The media barons will
only reverse all-rights contracts if we continue to show them we can cause them financial pain. We have that power.
We must and will use it." But this is not like a conventional strike, where planes stop flying or UPS trucks stop delivering packages. The only economic harm to the Times et al is the one-time cost of settling with past freelancers. The "all-rights" provisions of publishers' contracts aren't changed at all. Meanwhile, the Tasini Chasm may become a permanent feature of the digital landscape.

No wonder the
NWU resorts to the courts.They
represent a cause few can sympathize with on behalf of workers who can never
be organized.But even with a
Supreme Court verdict in their pocket, the NWU isn’t negotiating for a
settlement – they’re back in court.

Despite the
uphill nature of the struggle, I believe that, rather than litigating
endlessly, the NWU ought to be pressing the moral case.The issues of repurposing of content didn’t begin in the digital
age.Television writers and
actors long ago negotiated with TV networks and producers a system of
“residuals” that compensate the writers when shows go into syndication,
into international distribution, or onto video.The recording industry, through ASCAP and BMI, ensures that royalties
are captured even when a hit record is played on a jukebox in a dive bar.(Not surprisingly, NWU has generously offered to become the
clearinghouse for freelance writer royalties.)

Of course, in
the Internet era, the issues surrounding royalties management become
infinitely more complex.Metallica
didn’t get any royalties when its music traded on Napster.The day Princess Diana died, hundreds of memorial Web sites sprang
up, displaying copyrighted photographs lifted from major publications; the
publishers and the photographers didn’t see any royalties. Writers
aren’t immune; go to Google Groups and do a search on “Paula Poundstone.”You’ll find numerous Associated Press bylined articles cavalierly
pasted in full text.Neither the AP, nor its member news organizations, nor AP
authors, see any royalties from this repurposing.

These are tough
issues. But these are the issues
that the NWU should be wrestling with.Instead of coming to grips with the digital present and the Internet
future, the NWU chose to waste resources fighting for a limited group of
authors under rules that are no longer in effect.Even if the NWU eventually wins for that narrow class, it has
done nothing for present and future freelancers, and it has wrought great
harm to digital archives.

Instead of
asking the courts to solve its problems, why doesn’t the NWU try to build
a prototype of how a fairer compensation system might work? Why doesn’t
the NWU try to find one publication
that will experiment with a new payment model that compensates authors
fairly?Many newspapers and
periodicals now provide a “search for free, pay for articles out of the
archives” model.Why not find
one publication willing to experiment with a metered compensation model for
those by-the-sip sales?A
publication might find such payments a useful incentive for authors to write
more appealing articles in the first place.In effect, the author is trying to please not only an editor and
current readers, but potential future readers.

In short,
Jonathan Tasini has a choice.Will
his name go down in history as someone who sued and sued, tilting at
windmills in publishing, while never winning a meaningful compensation model
for his workers? Will he pursue an unexpected one-time bonus for a small
group of workers? Or will he in fact negotiate new industry models for
fairly compensating all freelance
writers when their work is repurposed?Tasini should bear in mind that Walter Reuther and Cesar Chave
z didn’t earn their places in history by suing people.